Rape Victims as Criminals

Illegal Abortion after Rape in
Ecuador

Detection and
Prevention of Sexual Violence and Other Forms of Gender-Based Violence

Maternal
Mortality and Morbidity

Obstacles to
Obtaining Potentially Life-Saving Care

Negative
Stereotypes and Discrimination against Women and Girls Living with Disabilities

International
Legal Obligations

Recommendations

To President
Rafael Correa

To the
National Assembly

To the
Ministry of Public Health

To Donors
and United Nations Agencies

Methodology

Summary

Ecuadorian law imposes prison terms ranging from one to five years for women and girls who receive abortions. Medical professionals who provide them are subject to harsher penalties. The criminal
code provides for only three exceptions to criminal punishment:

in the case
of a threat to the life of a pregnant woman, when the danger cannot be averted
by other means

in the case of a threat to the health of a pregnant woman,
when the danger cannot be averted by other means or

when the pregnancy is
the result of a rape or statutory rape of a woman who is an “idiot or
demented.” Ecuador’s laws do not allow other women or girls to seek
abortion in the case of rape, this despite the fact that a 2011 nationwide
government survey estimated that one out of four Ecuadorian women has been a
victim of sexual violence.

Although actual prosecutions of women who receive abortions
or doctors who perform them are rare, the criminal restrictions on abortions
have very real consequences. Notably, abortion—often performed in
clandestine, unsafe conditions due to their illegality—is the leading
cause of female morbidity (disease, disability, or physical harm), and a
significant cause of maternal mortality, in Ecuador. These provisions in the
criminal code also treat women and girls with disabilities differently from
other women and girls, fostering inequality.

Human Rights Watch conducted research on these
issues in Ecuador from May to July 2013 in eight provinces. We interviewed 45 medical professionals who provide post-abortion care
to women and girls; 37 women and girls, almost half of whom were Afro-Ecuadoran
or indigenous, about their reproductive health and gender-based violence
histories; and 22 experts on women’s rights, including government
officials and NGO representatives. We found that Ecuador’s
criminalization of abortion after sexual violence (except in the case of
so-called “idiot and demented” women) has the following impacts. It:

Hinders detection and prevention of sexual
and gender-based violence;

Contributes to maternal injury and death;

Creates delays or obstacles for women and
girls needing potentially life-saving care; and

Perpetuates negative stereotypes and
inequality of women and girls with disabilities.

Ecuador’s restrictions on legal and safe abortion,
even in the case of rape, also impose unnecessary costs on the state and
private health sector, and impair the state’s response to sexual and
other gender-based violence.

In 2012 Ecuador’s National Assembly debated reforms to Ecuador’s
criminal code that included increased penalties for some forms of violence
against women and eliminated criminal punishment for abortion in all cases of
sexual violence. These criminal code
reform debates resumed in 2013, with a vote expected in late August 2013.

President Rafael Correa has on multiple occasions made public statements
promising to veto any legislation that “goes beyond” the current
code’s abortion provisions.[1] In
May 2013, President Correa stated that “We truly defend life from the
moment of conception, as stated in the Constitution; so, abortion is not
allowed, my fellow countrymen.”[2]
The president’s adamant public opposition to any changes to
Ecuador’s abortion laws threatens the advances in protecting the human
rights of women and girls proposed in the draft criminal code reform.

Over the last seven years, Human Rights Watch has published six reports on
Latin American and Caribbean countries, and one report on a European country,
that looked at the impact of penal codes and policies that restrict the
exercise of women’s reproductive rights. We have consistently found that
legal frameworks that do not exempt from punishment abortions performed when a woman’s
life or health is endangered or in the case of rape create an environment where
women turn to unsafe and clandestine procedures that threaten their health and
lives.

In the interest of improving protection for
women and girls in Ecuador against violence and respecting their
rights—including their rights to life, physical integrity, health, and
non-discrimination—Ecuador’s government should remove criminal
penalties for abortion. It should immediately eliminate penalties for all women
and girls who are the victims of sexual violence and seek abortions, and strike
all demeaning language in the current criminal code referring to women and
girls with disabilities. Human Rights Watch also urges the government to
improve data collection on reproductive and maternal health, including by
assessing the costs to the health system of treating complications from unsafe
and illegal abortion, and more precisely tracking maternal deaths and injuries
resulting from unsafe and illegal abortion.

Ecuador’s Laws on Violence against Women and
Reproductive Health

Ecuador has a number of laws and policies relevant to
violence against women, reproductive and maternal health, and post-rape care.
Some are rights-respecting, and others are in major need of reform.

Article 32 of the 2008 Constitution provides significant protection for the
rights of women and girls, guaranteeing the right to health and obligating the
state to promote and provide sexual and reproductive healthcare. The provision
explicitly invokes a set of principles including equity, prevention, and
quality, and a focus on women’s rights.[3]
Victims of domestic and sexual violence also have the constitutional right to
receive priority and specialized care in the public and private health sectors.[4]
All people have a right to a life without violence and to make free,
responsible, and informed decisions about one’s health and reproductive
life, and decide when and how many children to have.[5]

Ecuador also has laws specifically addressing and criminalizing domestic and
sexual violence,[6] as well
as policies and protocols to implement those laws, as described below (under
the section on “Detection of Sexual Violence or Other forms of
Gender-Based Violence”).

These
protections are undermined by the criminal penalties for termination of
pregnancies resulting from rape—for anyone other than a woman who is an
“idiot or demented” or who is not covered by other exceptions.[7] If
not covered by the exceptions, the criminal code
imposes prison sentences for those who receive or perform abortions.[8] Article 443 criminalizes the act of providing abortion
services or abortifacients to a woman who has voluntarily sought an abortion,
and it imposes punishment of prison terms from two to five years.[9] Article 444 of the code punishes women who have abortions
with one to five years in prison.[10]

Criminal Code Reform

Ecuador is undertaking a revision of its criminal code. In
October 2011, the executive branch introduced a draft criminal code to the
Justice and State Structure Committee of the National Assembly. The Committee
held 39 hearings on the bill before it was referred to the full Assembly for
debate in July 2012. That debate ended without the bill being adopted. A second
debate is expected to be held in late August 2013, before a final vote is taken
on the criminal code.[11]

An amendment to the draft criminal code presented in the
first debate would modify the exception to punishment for abortion in the case
of rape by eliminating the provision that limits abortion after rape only when
the victim is a so-called “idiot or demented woman.” This would have
the effect of establishing an exception to penalties for abortion in all
instances of rape.[12]
This provision was in the final draft of the bill submitted by the Justice
Committee, headed by the majority party, for debate in July 2012. In fact,
Mauro Andino, a member of Correa’s Alianza País party and
president of the Justice Committee in the Assembly, explained that the change
was not a “decriminalization of abortion,” but rather a correction
of discriminatory language in the code.[13]
It is this version of the bill, however, that President Correa has repeatedly
promised to veto precisely because it loosens restrictions on abortion.[14]
The December 9, 2012 draft of the criminal code bill, prepared after the first
debate, maintained this proposed change. However, a new draft is expected to be
released prior to the August 2013 debate, and it is unknown whether it will
address penalties for abortion after rape.

Impact of Ecuador’s Abortion Ban on Women and
Girls

Human Rights Watch evaluated the
impact of Ecuador’s existing abortion law on the basis of interviews with
individual women and girls, health care professionals, government officials,
and other experts (described in the methodology section). We found that
Ecuador’s criminal ban on abortions, including in the case of rape
(except for so-called “idiot or demented” women), (1) hinders
medical professionals’ ability to detect sexual violence or other forms
of gender-based violence, (2) contributes to Ecuador’s high maternal
mortality and morbidity rates, (3) creates delays or obstacles for women and
girls needing potentially life-saving care, and (4) perpetuates negative
stereotypes about and discrimination against women and girls living with
disabilities, which may risk depriving them of their legal right to make
decisions about when and whether to have children.

Detection and Prevention of Sexual Violence and
Other Forms of Gender-Based Violence

Ecuador has high rates of violence against women, including
sexual violence. A 2011 government-conducted nationwide survey of almost 19,000
households in all of Ecuador’s 24 provinces found that 60 percent of
Ecuadoran women respondents had experienced some type of gender-based violence
in their lifetimes.[15]
According to government estimates based on its analysis of data from the
survey, one out of every four women in Ecuador has suffered sexual violence in
her lifetime.[16]
Of women who reported sexual violence in the survey, 53.3 percent said their
partner or ex-partner was the perpetrator, while 46.5 percent reported that the
perpetrator was someone other than a partner or ex-partner.[17]

Although Ecuador is actively taking steps to address
gender-based violence,[18] the
criminalization of abortion after rape creates obstacles for Ecuador to
effectively tackle the high rates of violence against women.

The Ecuadoran Ministry of Public Health has developed
detailed norms for the comprehensive treatment and care of pregnant and
post-partum women and girls, including the detection of sexual abuse and
intra-familial violence.[19]
However, when victims of sexual violence seek post-abortion medical care for
complications from clandestine, illegal abortions, the current abortion law
serves as a disincentive to reporting the violence, because the victims fear
that clinic or hospital staff will conclude they illegally induced the
abortions themselves. As detailed below, this makes detection of violence
against women and girls more difficult, and contributes to impunity for such
violence.

The majority of medical professionals interviewed by Human
Rights Watch said that they believe fear of criminal penalties distorts what
women and girls are willing to tell them, and thus leads them to miss
opportunities to refer the women and girls to appropriate services. These
professionals said that if women or girls arriving at clinics or hospitals with
abortions in process or needing post-abortion care tell doctors that they were
raped, medical professionals and state authorities may suspect that the women or
girls intentionally and illegally terminated their pregnancy.

According to a 2013 WHO report on gender-based violence
globally, women who have been physically or sexually abused by their partners
are more likely to seek an abortion than women who have not experienced partner
violence.[20] In its
analysis, the WHO emphasizes the importance of health-care providers
“identify[ing] opportunities to provide support and link women with other
services they need....”[21] But as
the WHO notes, and Human Rights Watch interviews in Ecuador confirm, women and
girl survivors of violence may seek health care, particularly sexual and
reproductive services including post-abortion care, and not disclose
information about the violence to providers.[22]

For example, at a health clinic in the city of Santo Domingo
in Tsachilas, two medical professionals in separate interviews told Human
Rights Watch about a woman they jointly treated twice for reproductive
post-abortion care, in April 2013 and in June 2013.[23]
The patient did not report that the pregnancies were the product of sexual
violence; however, the woman had in previous routine medical visits told the
medical professionals that her partner was sometimes violent.[24]
The professionals suspected that both abortions were punishable under Ecuadorian
law. They did not question the woman further about violence by her partner or
ask whether the pregnancies resulted from rape, nor did they refer the case to
authorities for fear the woman could be subject to prosecution.[25]
The clinic provided the woman with necessary medical post-abortion treatment,
but did not refer her to services for victims of sexual violence. The current
status of the patient is unknown.

A counselor at the same clinic recounted a similar case within
the last 10 years of a 13-year-old girl. The child came to the clinic needing
post-abortion care for three separate pregnancies in the course of one year.[26] The criminal
ban on abortion was in effect at the time. Each time, the girl’s father
accompanied her to the clinic, raising questions in the professional judgment
of health professionals as to how much he knew about who was sexually abusing
and impregnating his daughter. Under the law the age of consent is 14, meaning
at the very least each of these pregnancies resulted from statutory rape. When the counselor tried to speak with the girl about
her pregnancies, the abortion, and the potential abuse, she refused to speak. The counselor did not refer the case to authorities
for further investigation because medical evidence strongly suggested that the
child’s abortions were induced in all three cases, opening her up
to potential juvenile justice consequences.[27] The
clinic did not conduct follow-up in the patient’s case, and had no information about the girl’s current
circumstances.

Almost half of the medical professionals interviewed by
Human Rights Watch described cases they had handled of adolescent girls or
young women that came to clinics seeking abortions after what the patients
described as cases of rape.[28] These
girls and young women were not what the medical professionals thought might be
considered “idiot or demented” under the law, a phrase nowhere
defined in Ecuadorian law, nor, in their view, did the pregnancies threaten the
lives or health of the women and girls. The medical professionals had to turn
away these women and girls, some as young as 12 years old, because abortion was
not legal in their cases. These professionals did encourage the victims of
violence to report the rapes to prosecutors, but none were aware of the victims
having done so. As one peer counselor told Human Rights Watch, “these
girls [and women] want to end the pregnancy” more than they want justice.[29]
Reporting the cases to prosecutors would make securing an illegal abortion more
difficult, because authorities would be aware of the pregnancy. They would then
know if the pregnancy was terminated, and could prosecute the woman or girl for
undergoing an abortion. For example, one Ministry of Health official told Human
Rights Watch about a case of an 11-year-old girl whose pregnancy became a
source of evidence for prosecutors in the rape case against the suspect.[30]
The alleged perpetrator, a close family member, remained free until the child
could give birth and a DNA test could be conducted on the baby to establish
paternity.[31]

Maternal Mortality and Morbidity

Global studies underscore that the criminalization of
abortion does not reduce the number of abortions,[32]
but instead drives women and girls to seek clandestine and unsafe abortions
that contribute to maternal mortality and morbidity. This is a major concern
for Ecuador, which has high rates of maternal mortality and morbidity.

Though lauded by development organizations as a success
story in meeting many of its Millennium Development Goals (development goals
agreed upon states and institutions in 2000 with targets and benchmarks through
2015),[33] recent
government statistics indicate Ecuador is not on track to meet its goal of
reducing maternal deaths by 75 percent from 1990 levels—from estimates as
high as 150— to 29 maternal deaths per 100,000 live births.[34]
Since 2008, the Ministry of Health has undertaken significant efforts to reduce
the maternal mortality ratio, including the development of detailed norms and
technical guides on maternal health.[35] Such
efforts have led to a reduction in maternal deaths caused by post-partum
hemorrhaging.[36]
Nevertheless, maternal mortality in Ecuador remains stubbornly high.[37]
Lack of data and differences in the methodologies used by the government and
international agencies in their calculations have led to conflicting estimates
of maternal mortality ratios, but none of the government’s most recent
calculations reported by the National Institute for Statistics and Census put
Ecuador on track to meet its goal.

In 2011 the government-reported maternal mortality ratio was
105 maternal deaths for every 100,000 live births—more than three times
its target ratio.[38]
According to government statistics using the same ratio of maternal deaths to
100,000 live births, the 2011 ratio of maternal death is more than twice as the
high as the ratio in 2006, which was 48 maternal deaths per 100,000 live
births.[39] In
2011, the maternal mortality ratio was as high as 290 for every 100,000 live
births in the province of Sucumbios,[40] a
higher ratio than in Bangladesh, Pakistan, and some countries in sub-Saharan
Africa.[41]

According to government data, complications from abortion—whether a legal abortion or one procured
illegally—killed at least 10 women or girls in Ecuador in 2011.[42]
The number of women or girls that died from unsafe abortions in fact is likely
to be higher, because few doctors report the actual cause of death or
morbidity, instead reporting cases of abortion as sepsis, hemorrhaging, and
other pregnancy and post-partum complications.[43]
Therefore, the actual number of deaths related to abortion in 2011 likely
includes the 10 known cases plus some of the 93 deaths listed as due to post-partum
hemorrhaging, sepsis, and unspecified causes.[44]

One former Ministry of Health official told Human Rights
Watch that he believes the ministry has reached the maximum that it is able to
do within the law to prevent maternal injury and deaths by producing detailed
norms, protocols, and practical guides.[45] In the
opinion of this former government official, a legal and political change
through criminal code reform broadening exceptions to penalties for abortion is
needed to protect the health and lives of Ecuador’s women and girls from
maternal mortality and morbidity.[46]
Allowing abortion in the case of sexual violence is an important legal change
that could reduce the number of illegal and unsafe abortions.

According to government data, abortion (no breakdown was
provided differentiating between legally and illegally procured abortions) was
the leading cause of morbidity in women in Ecuador’s hospitals in 2011,
with over 23,000 cases of disease, disability, or physical harm.[47]
This classification is widely understood by medical professionals to be one of
the categories under which health facilities report treatment of women who have
complications arising from unsafe, induced abortion (as opposed to spontaneous
miscarriages). Several doctors and former officials said they believe the true
number of abortion-related injuries is much higher, and expressed frustration
that doctors and hospitals are vague and inaccurate when reporting such
morbidity because they fear criminal penalties against their patients.[48] As
one doctor told Human Rights Watch, “decriminalizing abortion [in the
case of rape] would mean we could accurately report on the reproductive health
of women. There would be more transparency about what is going on and [ability
to] help.”[49]

The impact on health-care costs for post-abortion care for
clandestine abortions in Ecuador is unknown, but may in fact be very high given
the reported numbers of hospitalizations related to abortion. According to a
general estimate, the cost in Latin American countries in 2006 was as high as
$109 dollars per patient seeking post-abortion care, or an inflation-adjusted
cost of $126 per patient in 2013.[50]

Of great concern is the number of cases of abortion-related
morbidity affecting girls and adolescents. Ecuador estimates that in 2011,
there were 258 cases of abortion-related morbidity in girls ages 10 to 14, and
over 4,000 cases in girls and women ages 15 to 19.[51]
The WHO has warned that pregnant adolescents are more likely than adults to
have unsafe abortions, and that such abortions contribute substantially to
lasting health problems and maternal deaths.[52]
Government statistics show a 74 percent increase in pregnancies among 10- to
14-year-olds in the last decade, and childbirth is the second leading cause of
morbidity in girls ages 10 to 14 in Ecuador.[53] Women’s
rights organizations in Ecuador note that there is a high likelihood that many
of these girls became pregnant due to sexual abuse.[54]
According to the age of consent, any pregnancy in a girl under the age of 14
would be a product of statutory rape.[55]

The limited availability of misoprostol, a multi-use
drug that can be used to perform generally safe, medical abortions, has reduced
the number of abortions performed with instruments in the region. Nevertheless,
medical professionals in Ecuador confirmed that “even with misoprostol
available, very grave cases still exist—uterine perforations,
infections, sepsis, bleeding—from [surgical abortions]. [And] [w]ith misoprostol,
women still come in bleeding.”[56]

All of the medical professionals with whom Human Rights
Watch spoke had treated or provided post-abortion care to women and girls who
had complications arising from illegal abortions, while a few had patients who
had died from an illegal abortion.[57] One
doctor in Quito told Human Rights Watch about a case dating from approximately
2007 of a 24-year-old woman who arrived at the main maternity hospital in Quito
too late to be saved.[58] She had
a uterine perforation and internal bleeding from an unsafe abortion, and blood
filled her abdomen. Though the doctor and colleagues took emergency measures immediately,
the woman died in this doctor’s arms. He does not have any idea about the
events that caused her death. When abortion is illegal, he said, “women
live through abortion alone. All the information about the abortion died with
her,” he told Human Rights Watch. Doctors at the hospital did not know
why she had the abortion, or if she had been victim of rape. They also did not
know where she received the abortion, information which could have helped them
dissuade other women from using the same provider, or if it was self-induced.

A counselor working at a women’s health clinic in the
town of Latacunga, Cotopaxi province, told Human Rights Watch of an incident in
which a woman was left with a permanent disability after an attempted abortion.[59]
The woman first sought an abortion at a private health clinic in Latacunga. The
woman explained that her husband was abusive, and would not allow her to
practice family planning. The counselor said she explained to the woman that it
was illegal to perform an abortion, but in the future they could work with her
to find a family planning method for her situation. The woman did not disclose
further information, including whether the pregnancy was the result of intimate
partner violence. The woman eventually found a clandestine clinic in the nearby
town of Ambato to perform the abortion.

The clandestine abortion did not end the woman’s
suffering, as the counselor discovered in a subsequent conversation with her.
Instead, the abuse continued and, when the woman became pregnant again several
months later, she climbed the tallest tree she could find and threw herself
from the highest branch she could reach—hoping to induce an abortion.
Rushed to the hospital, she did not disclose she was pregnant. The fall did not
induce an abortion. She received x-rays to evaluate injuries as a result of her
fall, exposing the fetus to high levels of radiation. Under these
circumstances, she was able to secure a safe abortion.[60]
The woman, however, broke her spine in the fall and is confined to a wheelchair
for the rest of her life.[61]

Medical professionals who spoke to Human Rights Watch also
lamented the cases they did not treat. Many of them recounted stories of
adolescent girls or young women who sought abortions after what their patients
described as rape.[62] The
professionals said that after they informed their patients that abortion is not
legal even after rape, the patients left and did not return—leaving them
without any knowledge of the fate of the girls and young women.

Obstacles to Obtaining Potentially Life-Saving Care

The illegality of abortion, including after rape, leads some
women and girls who experience abortion-related complications to delay seeking
important medical care. Their reluctance to speak about the abortion can also
compromise the quality of treatment they receive.[63]

All of the medical professionals interviewed by Human Rights
Watch said that when women and girls who have had illegal abortions do seek
care, most often they do not tell healthcare professionals how they went about
trying to induce an abortion. Medical professionals told us that women and
girls come in bleeding, sometimes with infections, yet offer little
information. They said this forces them to guess what happened to their
patients, and undermines their ability to provide timely, quality care.[64]
As one doctor described, “women don’t tell you what happened; there
is fear and it is illegal. [But] women still die from induced abortion.”[65]
Lack of information about what occurred makes treatment difficult. A certified
midwife told Human Rights Watch, “[t]hey say ‘I fell’ or
‘I hit something.’ Rarely will they tell the truth.”[66]
Another doctor said, “[p]atients don’t tell us the truth when they
come in with abortions in progress. In their clinical history, they don't say
they took anything.”[67]

Some women and girls, even if they are not afraid to
disclose that they intentionally induced the abortion, do not have complete
information about how the abortion was performed in order to inform the
doctor’s treatment. One doctor explained that the abortions she sees can
be induced with anything from unknown injections, herbs, malaria pills, anti-parasite
drugs, and other methods. “Women don’t even know what they are most
of the time,” the doctor said.[68] A counselor
Human Rights Watch interviewed described the fear this instilled in patients
she saw: “[The women come in with] fever, pain, infections and bleeding;
they don’t know what they took, or what was injected, or what will happen
to them.”[69]

Negative Stereotypes and Discrimination against Women
and Girls Living with Disabilities

The current criminal code article related to abortion
perpetuates negative stereotypes about women and girls living with disabilities,
implying that they are more likely to be “unfit” mothers, and thus eligible
for abortion after sexual violence even when other women and girls are not. The
application of this provision is rare, and none of the medical professionals
interviewed by Human Rights Watch said they had been involved in providing abortions
for so-called “idiot or demented” women or girls. Independent of
how often it is applied, though, the provision uses outmoded and offensive
terms and, as described below, may in some cases contribute to human rights
violations.

The terms “idiota” and “demente” do
not have modern medical significance and are not defined in the law.[70]
These terms are inconsistent with Ecuador’s disability-rights respecting
Constitution, its disability laws, and its obligations under the Convention on
the Rights of Persons with Disabilities (CRPD), which calls for equal treatment
under the law.[71]
Moreover, medical professionals told Human Rights Watch that the vagueness of
these terms makes it difficult for them to assess the legality of abortion when
women and girls with disabilities become pregnant as a result of sexual
violence.[72]

To operate within the law in assessing whether rape victims
are eligible for abortions, doctors must determine whether a woman or girl in
question falls within the anachronistic terms “idiota” or
“demente”—conditions without modern medical diagnostics. Some
doctors with whom Human Rights Watch spoke literally threw up their hands in
disgust at the idea of having to ask a woman, who has admitted to being
pregnant from an act of sexual violence, if she is an “idiota” or
“demente.”

In addition, this challenge may lead some doctors to choose
to rely on a woman or girl’s legal guardian to make decisions about her
health, making it more likely they will undergo abortions without their consent.
This would be contrary to Article 23 of the CRPD and the call from the Committee on the
Rights of Persons with Disabilities for the “abolition of surgery and
treatment without the full and informed consent of the patient.”[73]

Uncertainty around the definition of “idiot” and
“demented” may also create delays in processing requests for legal
abortion. A Ministry of Health official in Cotopaxi told Human Rights Watch
that she was aware of at least two cases in the last few years of children
under the age of 14 (one was 11) with disabilities who filed for legal
abortions. Although the official was not certain of the reason for the delays,
she believed they were due to confusion in determining whether the girls met
the definition. Neither of the requests was processed in time and both children
carried the pregnancies to term, she said.[74]

International Legal Obligations

Authoritative interpretations of international law recognize
that obtaining a safe and legal abortion is crucial to women’s effective
enjoyment and exercise of their human rights, in particular rights to equality,
life, health, physical integrity, the right to decide on the number and spacing
of children, and to be free from cruel, inhuman, and degrading treatment.[75]
Human Rights Watch has previously published detailed legal analysis of the
relationship between international human rights law and abortion, equally
relevant for Ecuador.[76]

Since the mid-1990s, the UN treaty bodies that monitor the
implementation of the International Covenant on Civil and Political Rights, the
International Covenant on Economic, Social and Cultural Rights, the Convention
on the Elimination of All Forms of Discrimination against Women, the Convention
against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment,
and the Convention of the Rights of the Child have produced a significant body
of jurisprudence regarding abortion in over 122 concluding observations
concerning at least 93 countries.[77]
These treaty bodies have also issued general comments addressing reproductive
rights and abortion.[78]

In their commentaries, these bodies have frequently
expressed concern about the relationship between restrictive abortion laws,
clandestine abortions, and threats to women’s lives, health, and
well-being. They have repeatedly recommended the review or amendment of
punitive and restrictive abortion laws and have urged states parties on
multiple occasions to legalize abortion, in particular when a pregnancy is life
or health-threatening or the result of rape.[79]

International human rights law and relevant jurisprudence
support the conclusion that decisions about abortion belong to a pregnant woman
alone, without interference by the state or third parties. Any restrictions on
abortion that unreasonably interfere with a woman’s exercise of her full
range of human rights should be rejected. UN bodies and conferences have
recognized that firmly established human rights are jeopardized and prejudiced
by restrictive and punitive abortion laws and practices. Likewise, the UN Special Rapporteur
on the right of everyone to the enjoyment of the highest attainable standard of
physical and mental health has determined that criminal laws penalizing and
restricting induced abortion are “impermissible barriers to the
realization of women’s right to health.”[80]

UN treaty bodies have expressed particular concern with
legislation that restricts access to legal and safe abortion after rape.

Moreover, international human rights law protects the right
to noninterference with one's privacy and family,[81] as
well as the right of women to decide on the number and spacing of their
children without discrimination.[82] These
rights can only be fully implemented where women have the right to make
decisions about when or if to carry a pregnancy to term without interference
from the state. In the case of a pregnancy resulting from rape, abortion is a
way for a woman or girl to exercise this right.

The CEDAW Committee has often recommended that states
parties review legislation prohibiting abortion to meet their obligation to
eliminate discrimination against women,[83] as
set out in detail in its General Recommendation No. 24 on women and health: “When
possible, legislation criminalizing abortion could be amended to remove
punitive provisions imposed on women who undergo abortion.”[84]

Treaty bodies have made specific recommendations to Ecuador
in relation to its restrictive abortion laws. The Human Rights Committee has
expressed its concern about the relationship in Ecuador between very high
numbers of suicides of young girls and women and the prohibition of abortion:

[T]he Committee regrets the
State party’s failure to address the resulting problems faced by
adolescent girls, in particular rape victims, who suffer the consequences of
such acts for the rest of their lives. Such situations are, from both the legal
and practical standpoints, incompatible with articles 3, 6 and 7 of the
Covenant, and with article 24 when female minors are involved.[85]

The Human Rights Committee recommended that Ecuador “adopt all
necessary legislative and other measures” so that women and girls with
unwanted pregnancies can access adequate health and educational facilities.[86]

In November 2012, the
Committee on Economic, Social and Cultural Rights (CESCR), noting concerns
about legal restrictions on abortion in Ecuador, recommended that the
government:

…amend its Criminal
Code so as to establish that abortion is not an offence if the pregnancy is the
result of rape, regardless of whether or not the woman in question has a
disability, or if the existence of congenital anomalies has been established.[87]

Recommendations

To President Rafael Correa

Publicly support women and girls’
right to unhindered access to abortion where allowed by law, and press changes
to Ecuador’s criminal code provisions on abortion that make them
consistent with the Constitution and Ecuador’s international human rights
obligations by making abortion legal in all cases of rape.

To the National Assembly

Update the criminal code to make it
consistent with the Constitution and Ecuador’s international human rights
obligations by allowing all girls and women access to legal, voluntary, and
safe abortions in all cases of rape.

Remove the criminal code reference to
“idiot or demented” women in the provision on abortion after rape,
because the terms are antiquated and offensive and because ambiguities around
their definitions can lead to involuntary medical treatment based on disability
status. Women and girls living with disabilities should have access to abortion
in cases of sexual violence in accordance with their wishes.

To the Ministry of Public Health

Ensure that women and girls have access to
high quality abortion services in all cases of legal abortion, and that
post-abortion care is available for all abortion-related complications.

Adopt and implement clear protocols for
legal abortions, including abortions allowed under the current criminal code
and abortions allowed after enactment of the new criminal code, including in
all cases of rape.

Ensure that all health care and services
provided to persons with disabilities are based on the free and informed
consent of the individual concerned.

Collect and publish data showing the
societal and economic costs of maternal mortality and morbidity related to
illegal abortion in Ecuador, or assist other government ministries to do so.

Should the criminal code be amended to allow
abortion after rape, the Ministry of Health should coordinate with other
competent ministries to educate the population about the change in law and
women’s and girls’ right to health services after rape, including abortion
services if they want them. Particular attention should be paid to youth and at-risk
populations.

To Donors and United Nations Agencies

Advocate for Ecuador to remove criminal
penalties for abortion, including in all cases of rape, and to ensure that
women and girls have access to safe and legal abortions.

Help fund the collection and publication of
data showing the societal and economic costs of maternal mortality and
morbidity related to illegal abortion in Ecuador.

Methodology

This report is based on research conducted by Human Rights
Watch in the provinces of Pichincha, Tsachilas, Esmeraldas, Cotopaxi,
Chimborazo, and Imbabura. Telephone or Skype interviews were also conducted
with experts from the provinces of Guayas and Azuay. All interviews were
conducted in May, June, and July 2013.

A Human Rights Watch researcher carried out more than 45
interviews with medical professionals that provide post-abortion care to women
and girls; 37 interviews with women and girls about their reproductive health
and personal histories regarding violence against women; and 22 interviews with
experts on women’s rights, including government officials and NGO
representatives.

All women and girls interviewed provided oral informed
consent to participate. Individuals were assured that they could end the
interview at any time or decline to answer any questions, without any negative
consequences. All participants were informed of the purpose of the interview,
its voluntary nature, and the ways information would be collected and used.
Care was taken with victims of gender-based violence to minimize the risk that
recounting their experiences could further traumatize them. No interviewee
received compensation for providing information. Where appropriate, Human
Rights Watch provided contact information for organizations offering legal,
counseling, health, or social services. Due to the illegality of abortion and
the highly sensitive nature of the topic within Ecuadoran society, interviewees
are identified by their initials and profession.

In this report, the word “child” refers to
anyone under the age of 18, with “girl” referring to a female
child.

978-1-62313-0459

[1]
President Correa stated on his Twitter account, “with all due respect for
different opinions, I will veto every new article about abortion that wants to
go further than what is already established in the criminal code.” The
original Twitter post can be found at:
https://twitter.com/MashiRafael/status/221113741784256512 (accessed July 17,
2013). See also “Debate sobre aborto queda casi definido por advertencia de
Rafael”, El Universo, July 9, 2012,http://www.eluniverso.com/2012/07/10/1/1355/debate-sobre-aborto-queda-casi-definido-advertencia-rafael.html (accessed July 17, 2013); “Aborto: el
tema polémico en debate del Código Penal”, La Hora
Nacional, July 8, 2012, http://www.lahora.com.ec/index.php/noticias/show/1101358121/-1/Aborto%3A_El_tema_pol%C3%A9mico_en_debate_del_C%C3%B3digo_Penal.html
(accessed July 17. 2013).

[8]
In addition to criminalizing abortions that are sought and performed with the
consent of the woman, articles 441 and 442 of the Criminal
Code of Ecuador, 1971, prohibit abortions
provoked without a woman’s consent and punish such acts with prison terms
from six months to six years.

[9]Criminal Code of Ecuador, art. 443. Under art. 446, when
medical professionals are suspected of an offence under articles 441-443, the prison
terms can be increased.

[11]
A simple majority (more than half of the total members) of the National
Assembly is needed to pass a bill. Constitution of Ecuador, 2008, art. 133. Once
the bill is approved by the National Assembly, it will be sent to the President
to review. The president can either approve it or veto it. If he signs it or
does not act for more than 30 days, the bill becomes law, and will be published
in the official registry. Ibid, art. 137.

[12]Proyecto de Código Orgánico Integral Penal, June 13,
2012, art. 142. Non-punishable
abortion: An abortion practiced by a doctor, with the consent of the woman or
of her spouse, partner, close family members or her legal representative when
she is not in a position to give consent, will not be punishable in the
following cases: 1 if it is done to avoid danger to the life or health of the
woman and such danger cannot be prevented by other means; and 2) if the
pregnancy is the consequence of rape. (Translation by Human
Rights Watch).

[13]Andino
stated in July 2012, “What we are doing in
this proposed bill is to take out these two words (an idiot or demented woman)
that are discriminatory against women. No more.”(Translation
by Human Rights Watch). El Universo, July 9, 2012, Debate sobre aborto queda casi definido por advertencia de Rafael, available at http://www.eluniverso.com/2012/07/10/1/1355/debate-sobre-aborto-queda-casi-definido-advertencia-rafael.html
(accessed July 17, 2013).

[18]
See, for example, Resolución 057-2013,
http://www.funcionjudicial.gob.ec/www/pdf/resoluciones/2013cj/057-2013.PDF
(accessed July 22, 2013). This resolution creates legal units for victims of domestic
and gender-based violence, removing the competency for enforcement of Law 103
from the Comisarias de la mujer y la familia and situating it in the Justice
Council. See also “Las Unidades
Judiciales de Violencia contra la Mujer empezaron a trabajar,” El Ciudadano,
July 17, 2013, http://www.elciudadano.gob.ec/index.php?option=com_content&view=article&id=43899:el-tramite-judicial-de-los-casos-de-violencia-contra-la-mujer-seran-mas-agiles&catid=40:actualidad&Itemid=63 (accessed July 17, 2013).
The objective of this change is to provide a comprehensive attention to
victims of gender-based violence. These units will have judicial officers, and
will also provide psycho-social support and other services to survivors of
violence.

[20]
The study states that victims of sexual or physical violence are two times more
likely to seek an abortion than women who have not experienced partner violence,
but the impact of the legal status of abortion on this decision is not clear.
World Health Organization, Global and regional estimates of violence against
women: prevalence and health effects of intimate partner violence and
non-partner sexual violence, 2013, p. 2, http://apps.who.int/iris/bitstream/10665/85239/1/9789241564625_eng.pdf
(accessed July 20, 2013) [hereinafter WHO Report]. A Spanish summary of the
report can be found at:
http://apps.who.int/iris/bitstream/10665/85243/1/WHO_RHR_HRP_13.06_spa.pdf
(accessed July 20, 2013). WHO also identifies other poor health outcomes for
women victims of violence, including increased “incident HIV infection,
incident sexually transmitted infections (STIs), […], low birth weight,
premature birth, growth restriction in utero and/or small for gestational age,
alcohol use, depression and suicide, injuries, and death from homicide. WHO
Report, p. 21.

[26]
Human Rights Watch interview with Lcda. N.Z., Consejera, Santo Domingo, July 5,
2013. The counselor could not remember the exact date of the case, but
approximated it took place in the last 10 years.

[27]
Ibid. According to Ecuador’s Code for Children and Adolescents, children
under the age of 12 years will not be subject to any form of liability. Adolescents
over the age of 12 years who commit an infraction of criminal law cannot be
held liable in a criminal court of ordinary jurisdiction. Instead, adolescents
may be subject to social-educative measures. See Code for Children and Adolescents,
2003, arts. 305-07.

[28]
See, for example, Human Rights Watch interview with M.C., Quito, June 3, 2013,
referring to a pregnant 13-year-old victim of sexual abuse by step-father;
Human Rights Watch interview with Obst. M., Riobamba, July 15, 2013, referring
to a pregnant 14-year-old victim of sexual abuse; Human Rights Watch telephone
interview with Dra. M.C., Rio Verde, July 4, 2013, referring to a pregnant 12-year-old
victim of sexual violence, assaulted after being drugged at a party; Human
Rights Watch interview with S., peer counselor, July 10, 2013, referring to a
case of a pregnant 14- or 16–year-old victim of sexual violence, assaulted
after being drugged at a party, and to a pregnant 22-year-old victim of
kidnapping and sexual violence. All of these cases occurred within the last three
to four years.

[29]
Human Rights Watch interview with S., peer counselor, July 10, 2013, referring to
a case of a pregnant 14- or 16-year-old victim of sexual violence, assaulted
after being drugged at a party, and to a pregnant 22-year-old victim of
kidnapping and sexual violence.

[33]
For example, the Center for Global Development (CDG) ranked Ecuador first in
the world, tied with Egypt and Honduras, in progress toward meeting its Millennium
Development Goals in 2011. See Center for Global Development, “MDG
Progress Index: Gauging Country-Level Achievements,” 2011,
http://www.cgdev.org/page/mdg-progress-index-gauging-country-level-achievements
(accessed July 22, 2013).

[34]
The target maternal mortality ratio for Ecuador by 2015 is 29 maternal deaths
per 100,000 live births. See United Nations Development Programme, Second
National Report of the Millennium Development Goals- Ecuador, 2007, p. 18,
http://www.undp.org.ec/odm/II_INFORME_NACIONAL.pdf (accessed July 22, 2013).
National data on maternal mortality was not available in 1990; the 1990
estimate is a modeled ration from the United Nations Statistic Division. In
2011, Ecuador had a ratio of 105 deaths per 100,000 live births. INEC-Estadistícas Vitales: Nacimientos y Defunciones 2011, p.
15, http://www.inec.gob.ec/estadisticas_sociales/nac_def_2011/anuario.pdf
(accessed July 22, 2013). In contrast, the ratios used in the Center for
Global Development (CGD) report referenced in previous footnote, which
concluded Ecuador was on track to meet its target maternal mortality ratio,
were taken from a study which projected maternal morality ratios in 181
countries. The projections were calculated from preexisting estimated maternal
morality ratios collected from vital registration data, censuses, surveys, and
verbal autopsy studies dated from 1980-2008. See Margaret C Hogan, Kyle J
Foreman, Mohsen Naghavi, Stephanie Y, Mengru Wang, Susanna M Makela, Alan D
Lopez, Rafael Lozano, and Christopher JL Murray, “Maternal mortality for
181 countries, 1980-2008: a systematic analysis of progress towards Millennium
Development Goal 5,”The Lancet, Volume 375, Issue 9726, Pages 1609
- 1623 (2010). The more recent government statistics from Ecuador show an
increase in the maternal morality ratios, rather than the projected decrease
reported by CGD, based on the Lancet study. See discussion below.

[37]
The Pan-American Health Organization has claimed that the maternal mortality
ratio in Ecuador is “one of the hardest indicators to assess because of
the diversity of sources and inaccuracies in selecting both the numerator and
denominator.” Pan-American Health Organization, Health in the Americas,
Ecuador Chapter, 2012 Edition, p. 291,
http://www.paho.org/saludenlasamericas/index.php?option=com_docman&task=doc_view&gid=128&Itemid=
(accessed July 20, 2013). None of the government’s most recent
calculations reported by the National Institute for Statistics and Census put
Ecuador on track to meet its goal.

[40]
Ibid., p. 24. This number was calculated by Human Rights Watch by converting
the rate provided by the government, which used an estimate of live births in
the region for 2011 as a denominator, to the more standard calculation of
deaths per 100,000 live births.

[41]
This is based on comparison of 2010 data, not 2011 data. World Bank, Maternal
mortality ratio (modeled estimate, per 100,000 live births), 2010,
http://data.worldbank.org/indicator/SH.STA.MMRT?order=wbapi_data_value_2010+wbapi_data_value+wbapi_data_value-first&sort=desc
(accessed July 22, 2013).

[59]
Human Rights Watch interview with counselor, Latacunga, July 13, 2013. The interviewee
could not recall the exact dates of this case, but estimated the first abortion
occurred about eight years ago.

[60]
There is no exception provided for in the Ecuador Criminal Code for abortions
on the basis of fetal malformation or poor health. There are, however,
regulations within the health code that allow doctors to perform abortions in
the case of fetal malformations upon the consent of two doctors. While this
leads many people to believe the procedures are exempt under the criminal code,
there is no such explicit exemption.

[62]
See, for example, Human Rights Watch interview with M.C., Quito, June 3, 2013,
referring to a pregnant 13-year-old victim of sexual abuse by step-father;
Human Rights Watch interview with Obst. M., Riobamba, July 15, 2013, referring
to a pregnant 14-year-old victim of sexual abuse; Human Rights Watch telephonic
interview with Dra. M.C., Rio Verde, July 4, 2013, referring to a pregnant
12-year-old victim of sexual violence, assaulted after being drugged at a
party; Human Rights Watch interview with S., peer counselor, July 10, 2013,
referring to a case of a pregnant 14- or 16–year-old victim of sexual
violence, assaulted after being drugged at a party, and to a pregnant
22-year-old victim of kidnapping and sexual violence. All of these cases
occurred within the last three to four years.

[77]
These numbers are from an analysis of the jurisprudence by Human Rights Watch
staff, copy on file at Human Rights Watch.

[78]
See, for example, the recent general comment of the Committee on the Rights of
the Child, General Comment No. 15, General comment No. 15 (2013) on the right
of the child to the enjoyment of the highest attainable standard of health (art.
24), April 2013, UN Doc CRC/C/GC/15, para. 54.

[82] CEDAW, article 16(1)(e). This
article reads: "States Parties shall . . . ensure, on a basis of equality
of men and women . . . (e) The same rights to decide freely and responsibly on
the number and spacing of their children and to have access to the information,
education and means to enable them to exercise these rights."

[83]
See, e.g., CEDAW Committee, "Report of the Committee on the Elimination of
Discrimination against Women,"U.N.
Doc. A/54/38/Rev.1, Part II, July 9, 1999, para. 229 (noting with regard to
Chile: "The Committee recommends that the Government consider review of
the laws relating to abortion with a view to their amendment, in particular to
provide safe abortion and to permit termination of pregnancy for therapeutic
reasons or because of the health, including the mental health, of the
woman"); and CEDAW Committee "Report of the Committee on the
Elimination of Discrimination against Women,"U.N. Doc. A/53/38/Rev.1,February, 1998, para. 349 (noting with
regard to the Dominican Republic: "The Committee invites the Government to
review legislation in the area of women's reproductive and sexual health, in
particular with regard to abortion, in order to give full compliance to
articles 10 [education] and 12 [health] of the Convention."). See also
CEDAW Committee, "Report of the Committee on the Elimination of
Discrimination against Women,"U.N.
Doc. A/54/38/Rev.1, Part I, July 9, 1999, para. 393.